NEW JERSEY FAMILY LAW Question & Answer

Q: Can I file for divorce in New Jersey?

A: The Superior Court of New Jersey has jurisdiction over all causes of divorce, when either person is a resident of New Jersey at the time the action is started. There is a twelve-month residency requirement. Furthermore, the jurisdiction of the court over the defendant is fully established when the defendant files an acknowledgment of service of process, enters an appearance, or files an answer to the complaint.

Q: What does the status of the marriage have to be to file for divorce? What are the grounds for filing for divorce?

A: New Jersey is now a true no-fault divorce state. In the past, most divorce complaints were based on either separation (living separate and apart for at least 18 months) or extreme cruelty, which required spouses to allege acts of cruelty against one another. With the true no-fault laws in place a marriage can be undone based on irreconcilable differences (one spouse doesn't need to make allegations against the other), the following requirements must be met:

There is also those grounds which still allege some type of fault by the other spouse. These include:

Extreme Cruelty
Extreme cruelty includes any physical or mental cruelty which makes it improper or unreasonable to expect that individual to cohabitate with their spouse. N.J.S.A. 2A:34-2(c). The courts are very liberal as to what type of conduct constitutes extreme cruelty. An Extreme cruelty claim for divorce is still appropriate in situations where domestic violence is a contributing factor to the breakdown of the marriage. Where there is a history of domestic violence. New Jersey law views the victim of domestic violence as the better suited parent for physical custody of the child or children. That being said, a spouse who has been a victim of domestic violence could use domestic violence (extreme cruelty) as the basis of their complaint in order to gain custody of the child or children; thereby, protecting the children from the aggressor.

Adultery
The courts have held that "adultery exists when one spouse rejects the other by entering into a personal intimate relationship with any other person, irrespective of the specific sexual acts performed; the rejection of the spouse coupled with out-of-marriage intimacy constitutes adultery." New Jersey Court Rule 5:4-2 requires that the plaintiff in an adultery divorce case, state the name of the person with whom the offending conduct was committed. This person is known as the correspondent. If the name is not known, the person who files must give as much information as possible tending to describe the adulterer.

Desertion
The willful and continuous desertion by one party for a period of twelve or more months, and satisfactory proof that the parties have ceased to cohabit as man and wife constitutes desertion under N.J.S.A. 2A:34-2(b). It is important to note that the parties may live in the same house. The crucial element here is "as man and wife." Thus, desertion may be claimed after twelve or more months of a lack of sexual relations.

Addiction
Under N.S.J.A 2A:34-2(e), addiction involves a dependence on a narcotic or other controlled, dangerous substance, or a habitual drunkenness for a period of twelve or more consecutive months immediately preceding the filing of the complaint. The evidence must show that the use of alcohol and drugs was persistent and substantial. This is not a common ground for divorce.

Institutionalization
When one spouse has been institutionalized for mental illness for a period of twelve or more consecutive months subsequent to the marriage and preceding the filing of the complaint, institutionalization is a ground for divorce under N.J.S.A. 2A:34-2(f). The primary issue for this ground for divorce is whether or not the spouse is able to function as a working partner in the marriage.

Imprisonment
Imprisonment as a ground for divorce occurs when a spouse has been imprisoned for eighteen or more months after the marriage. N.J.S.A. 2A:34-2(g). Also, the parties must not have resumed cohabitation after the imprisonment.

Deviant Sexual Conduct
Deviant Sexual Conduct occurs if the defendant engages in deviant sexual conduct without the consent of the plaintiff spouse. N.J.S.A. 2A:34-2(h).

Q: Will I receive alimony when I get divorced?

A:  First of all you should be aware that there are different types of alimony that can be awarded by the court. What type of reward you will receive will be dependent upon your circumstances. But generally speaking most alimony awards will fall into on the four categories below:

Permanent Alimony
Permanent alimony's purpose is to allow a spouse who became financially dependent in the duration of the marriage, to maintain a similar financial environment.  Permanent alimony is structured so that after the divorce, a spouse can continue to live in the lifestyle to which he or she had been accustomed during the marriage. In most cases marriages of long duration demonstrate the economic need where the courts will entertain an award of permanent alimony. The judicial threshold where permanent alimony is most likely is 15 years plus.

Rehabilitative Alimony
Rehabilitative alimony is a short-term award to get the dependent spouse back on his or her own feet. Rehabilitative alimony is structured to allow the dependent spouse to go back to school, get job training or some other type of alternative arrangement that will allow him or her to re-enter the workforce. Rehabilitative alimony will usually be structured so that of the non-dependent spouse will pay for the above mentioned arrangements for the dependent spouse.

Limited Duration Alimony
Limited duration alimony is structured so that is of a limited duration. Limited duration alimony is often awarded when the marriage was of a short duration or when a rehabilitative alimony award is not requested or the right fit, but the dependency of one the spouses justifies some award of financial support.

Reimbursement Alimony

A reimbursement alimony award compensates one spouse for the financial contributions that he or she has made to the professional training, career development or a business development of the other spouse, thereby enhancing that spouse's future earning capacity. An example would be where a spouse has helped to put his or her spouse through medical school.

There are 13 factors which are considered by the courts when deciding how alimony should be awarded :

1. The actual need and ability of the parties to pay;
2. The duration of the marriage;
3. The age, physical and emotional health of the parties;
4. The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;
5. The earning capacities, educational levels, vocational skills and employability of the parties;
6. The length of absence from the job market of the party seeking maintenance;
7. The parental responsibilities for the children;
8. The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
9. The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
10. The equitable distribution of property ordered and any pay-outs on equitable distribution out of current income, to the extent this consideration is reasonable, just and fair;
11. The income available to either party through investment of any assets held by that party; and
12. The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment.
13. Any other factors which the court may deem relevant.

Q: When can I stop paying alimony or for that matter modify it?

A: New Jersey law maintains that alimony terminates on the death or remarriage of the person receiving the alimony.  Otherwise unless agreed between the parties, it takes a Court Order to terminate or modify alimony.  The primary reason for termination or modification is if a substantial change of circumstances exists. If your ex-spouse is cohabitating with new partner this can be a basis for modifying and possibly terminating alimony. The court will require that the spouse seeking to terminate or modify the alimony, prove the economic benefit the ex-spouse is receiving as a result of her cohabitation.

Q: Will I receive child support when I file for divorce?

A: Children in New Jersey are by law entitled to be financially supported with regard given to the economic status of each parent. New Jersey has Child Support Guidelines to assist New Jersey courts in determining a sufficient child support award.

Those Child support guidelines are reached by using information that the parents must complete in a Worksheet. The Worksheet provides information on the parents' income, alimony obligation, other child support obligations, child care costs, health insurance costs for the child, right down to the parents' overnight schedule of care for the child or children. In fact the overnight schedule will have a bearing on which type of Worksheet will be provided to the court. There are two types of Worksheets used; a "Shared Parenting" Worksheet and a "Sole Parenting" Worksheet. Where the child stays overnight with one parent, less than 28%, or approximately less than two nights per week, the "Sole Parenting" Worksheet is used by the court. Where the child is staying more than 28%  with both parents and each parent provides separate living conditions,  the “Shared Parenting” Worksheet is used.

New Jersey law provides guidelines for  parents who have a combined net annual income up to $229,840.00. These Guidelines are by law presumed to be correct in awarding child support. In the case that a parent feels that his or her circumstances should allow an award outside of the Guidelines, he or she must display to the court that there is “good cause” for the court to make an award outside of the Guidelines.

In the case that the parents' combined net annual income exceeds $229,840.00, the amount of the parents’ additional child support obligation award given by the courts will be based upon the following factors:

1. Needs of the child;
2. Standard of living and economic circumstances of each parent;
3. All sources of income and assets of each parent;
4. Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
5. Need and capacity of the child for education, including higher education;
6. Age and health of the child and each parent;
7. Income, assets and earning ability of the child;
8. Responsibility of the parents for the court-ordered support of others;
9. Reasonable debts and liabilities of each child and parent; and
10. Any other factors the court may deem relevant.

In addition to a monthly amount to be paid a parent might be made, by way of court order, to pay for other expenses that arise in the course of the child's lifetime. These costs may include money for education as well as healthcare costs.

Q: When can I stop paying child support or have the child support modified?

A: The duty of child support ends when a child is emancipated. If a child graduates from high school and does not attend post-secondary school, he or she is usually emancipated as of the date of the high school graduation. If a child attends post-secondary school, the parents may still need to pay child support while the child is in school, in addition to the education costs.

In terms of modification, this may be possible when the parents' and or childs' circumstances change substantially. Events that may present a situation for modification include:

• Change in employment status of one of the parents.
• Changing educational needs of the children.
• Change in the health and necessary care of the child.
• Physical or mental disability on the part of either parent.

It is important to remember that child support is court-ordered and therefore you should never take it upon yourself to stop paying or pay less because you feel that  your circumstances have changed. While the child support was originally court ordered, it also requires a court order to have that amount modified.

When a parent fails to pay for child support, Riviere Cresci & Singer LLC., can assist you get the child support that you are entitled to receive.  For answers to your questions about divorce, alimony, child support or any other family matter contact our firm today.